High Court finds local authority subjected disabled asylum seeker to inhuman and degrading treatment for seven months

Monday 29 January 2024

Gráinne Mellon and Nadia O’Mara of Garden Court Chambers represented the Claimant, TMX. Counsel were instructed by Monica Kreel of TV Edwards.

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The High Court, in a judgment by Mr Alan Bates, sitting as Deputy High Court Judge, has held that Croydon LBC subjected TMX to degrading treatment contrary to Article 3 ECHR, and breached his Article 8 ECHR rights, for a period of at least seven months.

The Court also held that the local authority had breached its Care Act 2014 duties in failing to assess TMX’s ‘accommodation-related’ needs and failing to provide suitable accommodation for him and his family.

The lengthy and detailed judgment provides helpful guidance on the complex interplay between the obligations of a local authority under the Care Act, and the obligations of the Secretary of State for the Home Department under s. 95 IAA 1999.

It is also a rare example of a local authority being found in breach of Article 3 ECHR for its failure to comply with its duties to provide care and support, including accommodation. As far as we are aware, it is the first time that a local authority has been found in a reported judgment to be in breach of Article 3 ECHR by reason of a failure to perform its duties under the Care Act. This finding is even more unusual in view of the fact it was not the local authority who was in fact accommodating TMX in the unsuitable accommodation (which was provided by the Home Office). The requisite intent was made out by the local authority’s knowledge of TMX’s situation and the intentional choice to leave him in manifestly unsuitable accommodation for a substantial period.

The Claimant, TMX, is a 50-year-old asylum seeker whose claim remains outstanding. He has progressive multiple sclerosis (‘MS’) and functional neurological disorder. He suffers from severe and varied nerve pain – called parasthaesia – and also has strong muscle spasms. He describes the pain he experiences as “agonising”. He is a wheelchair user and cannot mobilise independently.

From June 2022, he had been accommodated by the Home Office under s. 95 of the Immigration and Asylum Act (‘IAA’) 1999 in one ensuite bedroom in an asylum hotel facility in the Croydon area. That single bedroom was shared with his wife and their two children, with dimensions of just 5m v 3.5m.

The accommodation was manifestly unsuitable for TMX. The room was on the fourth floor. The lift could only just fit his wheelchair and could not take him all the way to street level. The building had steps at the front and the platform lift was out of order the majority of the time. TMX was therefore in effect confined to the building, and at significant risk in event of fire.

The bedroom was too small for him to store and use his disability-related equipment. The bathroom was inaccessible and did not have adapted toilet/shower facilities. The lack of space for him to mobilise using equipment meant he was bedbound. The room was badly ventilated, and TMX would become unbearably hot in the summer months, exacerbating his MS symptoms.

The room afforded TMX no privacy from his children for his personal care. His children had to look away, or wait in the communal hallway when his wife provided his personal care as he lay in bed. This care involved helping him to urinate into bottles or have a strip wash, as he could not access the bathroom. Later, he also required catheter care in the same room, something that was very difficult to keep private from his children.  

There was no dispute that TMX had eligible needs for care and support under the Care Act 2014, and a care package was in place at all relevant times. Indeed, TMX could not meet any of the outcomes in the Care and Support (Eligibility Criteria) Regulations 2015. The local authority’s own assessments acknowledged the unsuitability of the accommodation. However, responsibility for providing him with suitable accommodation was said to lie with the Secretary of State.

In a detailed judgment handed down on 26 January 2024, the Court held that the local authority had breached its duties under the Care Act 2014 in failing to identity TMX’s ‘accommodation-related’ needs for care and support, and by failing to provide accommodation to him and his family.

The question before the Judge was essentially this:
“Where an asylum seeker’s physical or mental condition is such that they have accommodation-related care needs, who is responsible for providing the accommodation for that person? Is it the local authority responsible under the Care Act, or does responsibility lie with the Secretary of State under s. 95 IAA 1999?”

The Court answered that question resoundingly in TMX’s favour – responsibility lies with the local authority:

“[76]  I am in no doubt that the position contended for by the Claimant and by the Secretary of State is right and that the Council does have a duty to provide the Claimant with suitable accommodation. In my judgment, it was not lawfully open to the Council to take account of any accommodation being provided to the Claimant, or which might at some future point be offered to him, by the Secretary of State pursuant to s. 95. In other words, the Council should, when assessing the Claimant’s needs for care and support including accommodation-related needs, have ignored any current or potential provision of accommodation for him under s. 95.

[77]  That is a conclusion I would have reached even if there were no relevant case-law to assist me, since I would have considered myself led to it by reading the relevant legislation…
[79]  I would, as I have said, reached these conclusions based on the legislation alone, even if there were no relevant case-law. But there is relevant case-law. In my judgment, the principles to be derived from that case-law provide strong support for those same conclusions”.

Having found that the local authority was responsible for accommodating TMX and his family, the Judge went on to consider whether, by failing to provide suitable accommodation to him, had breached his Convention rights, specifically Article 3 ECHR and/or Article 8 ECHR.

The Court emphasised the high threshold to be met in Article 3 cases, requiring the complaint to be approached with “appropriate caution” [115]. “A finding of a violation of Article 3 is, by its very nature, a serious and significant finding which should not lightly be made” [115].

With that as its starting point, the Court nevertheless went on to conclude:

“118. I have no doubt that the Council’s prolonged failure to provide him with suitable accommodation, by causing his daily life to be so diminished, has given rise to “an imminent prospect of serious suffering caused or materially aggravated by [that] refusal”; indeed, it has actually caused and aggravated serious suffering”.

“126.   … Responsibility for providing the Claimant with suitable accommodation lay with the Council under the Care Act. The Council knew of the Claimant’s unacceptable accommodation situation and its impacts on him, but nevertheless left him to remain in that accommodation for a prolonged period whilst the Council denied responsibility. Therefore, if the Claimant, by reason of his having remained in that accommodation, suffered treatment crossing the Article 3 threshold, then the Council must be the public authority responsible for that treatment”.  

“138.   In my judgment, the Council made an intentional choice to leave the Claimant, for a substantial period, living in unsuitable accommodation in circumstances where it knew very well that this would lead to his conditions of daily living continuing to be severely impaired. Subjection of the Claimant to those conditions was a virtually certain consequence of the Council’s refusal to provide accommodation for him. In that sense, the Council intended to subject the Claimant to those conditions; conditions which I have found were sufficiently bad that they crossed the Article 3 severity threshold”.

As to the allegations under Article 8 ECHR (right to respect for private and family life), the Judge again found in the Claimant’s favour:
“158 … I am satisfied that the Claimant’s remaining in unsuitable accommodation interfered with his physical and psychological integrity to a high degree comparable to the level crossing the severity threshold for breaching Article 3. In that regard, I note I have already found, above, that the Claimant’s unsuitable accommodation breached his Article 3 right. I have so found essentially because his remaining in that accommodation has been a ‘but for’ cause of various impacts on him which are intimately connected with the concept of ‘private life’ for the purposes of Article 8. Those impacts have, in my judgment, substantially prevented him from: (a) pursuing any meaningful personal development, and (b) developing relationships with other human beings and the outside world save for his immediate family with whom he lives.

159. In that regard, I rely on the fact that he has, for many months, effectively been bed‑bound and has not been able to access the bathroom for carrying out basic daily personal functions, such as toileting and washing, which most people would wish to carry out in privacy. He has not been able to shower. He has not been able to go outside the building where he lives so as to engage with the community and to exercise personal autonomy. Taken together, his living circumstances, attributable to his unsuitable accommodation, have very seriously curtailed his ability to enjoy any real quality of life and have substantially deprived him of private life.

163 … I am satisfied that the Claimant’s remaining in unsuitable accommodation for the prolonged period that he has is attributable to significant culpability on the Council’s part. This is not a case in which a local authority has been anxiously seeking to provide suitable housing in fulfilment of its legal duties but been delayed in doing so by resource constraints. Rather, there has been prolonged failure on the part of the Council to acknowledge their responsibility for providing suitable accommodation for the Claimant under the Care Act; and it is that conduct which has led to the Claimant remaining in accommodation that was so unsuitable that it substantially deprived him of private life.”

The Judge found the duration of both breaches to have been over a period of seven months.

A final point of interest is the Judge’s criticism of the local authority’s position in the proceedings:
“91.…The Council’s positions taken in, and approach to, these proceedings have a distinct flavour of being part of a campaign of seeking to draw attention to a broader state of affairs which it believes is unfair to it. With respect to the Council, I can do nothing to assist, as it is not properly open to me to adopt unrealistic interpretations of legislation or to ignore case-law that is binding on me. If the Council and the NRPF Network are to achieve change, then such change will have to be won in Parliament; it cannot be done in the courts.”

Click here for the full judgment – R (TMX) v London Borough of Croydon & Anor [2024] EWHC 129 Admin.

Monica Kreel, TMX’s solicitor of TV Edwards LLP says:

"This is a fantastic judgment for our client and for other disabled asylum seekers. The High Court has recognised that Croydon Council, in ignoring our client’s dire accommodation and refusing to resolve the situation when it had a duty to do so, breached his Article 3 and 8 rights. He has now, finally, been moved to a small flat where he is receiving his care with dignity. "

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